The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-01-18

efnOr,
the Lieutenant governor and provides. further, that
the General Assembly shall provide by law for the
of removal from Office deash resignation in
ability both of the Governor and
declaring what officer shall then act as Governor
There is provision in the Constitution for the
election of Governor or a Lieutenant governor
to fill an unaxpred term in that office, but
simply providing for some to succeed
to the discharge of the duties of the office until Gov
ernor be regularly elected The Constitution pro-
vdes that he shall be elected for particular term be-
ginning at specified tme and to last for period of
four years. 1t does not provide for his election for
any shorter period and fof these without at
tempting to give the many additional reasons that the
eminent for the plaintiff have stated in the
gument think that no election could legally have
been held the specified III the petition for the
election of ACKNOWLEDGEMENTS and that therefore
the defendant according to the allegations of the pc
ton, not legally elected.
Under the allegations of the petition the relator,
Smith elected President of the Senate and had
the right to preside; and therefore the defendant
could rightfuy take from him exercise any of
the functions of the presiding officer OF the Senator
and if he did, he would, within the meaning of the
statute, be usurpng unawfuy exercising such
right or function. 1t is claimed by counsel for tho
defendant that he is facto Mt least the Lieutenant
governor, and that therefore, de facto officer he
cannot be enoined from dschargng the duties there
Of 1t is undoubtedly the law that. ordinarily, do
facto public officer cannot be enoined from dischaging
the duties of the Office. The reason is clearly
stated as follows: ITO restrain the action of the in
cumbent Is rain all the functions of the Office;
for he being Uneven if wrongfuy-no else can
enter until he is removed. and he must act
And it is not all difficult to that in very
many and the public interest would require
that the duties of an office should not be suspended
and its functions until the matter OF personal
right between rival claimants could be determined.
1t will be observed that the reason IS not because the
court has right restrain him. but because public
interest requires that tho duties of his Office shall be
exercised by some one. Ordinarily the duties or
charged by the holder of that Office only and if that
office is vacant the holder of the Office is enjoned
there is other officer can serve the public
in discharging any of the duties of his Office
In this case however, far as presiding over the
Senate is concerned that principle does not apply be-
in such the President of the Senate pre-
sides, and the public does not suffer for the want of
some officer to discharge such duties In this partcu
lar the very that the reator President
of the Senate asks that the defendant be enioned is
that he may be enabled without interruption, to dis
charge such duties 1t is maxim of law that when
the for the rule the rule itself
On the question of the power of the court in quo
warranto proceeding, to interfere with officer in
another department OF the government, quote from
Highs Extraordinary Legal Remedies, Section 631:
And where by the Constitution and laws of State
its highest judicial tribunal is vested with jurisdiction
by information in the nature of quo war, anto
prevent citizens of the State from usurpng its offices
and franchises unlawful intrusion into the chief
executive Office of the State may be tried by this
ceedng to custer. In such case plain distinction Is
recognized between department of the government
and the person assuming exercise it's duties, and
the judicial branch of the government in manner
nterieres with or attempts to control the legitimate
functions of the executive artment but only seeks
to protect the people from unlawful usurpation of
a high public Office or franchise.
No. Only will a de facto public officer not be
joined III the discharge of his duties but he will be pro-
| tectedin the discharge Of them.
In High Injunctons. Sec. 1919 it is said
.Thns equity will refuse to enion officers de facto
from exercising the duties and functions pertaining to
their Offices pending litigation in the nature of quo
warranto TO determinine their title. such refusal be-
ing based upon recognition of the element OF public
interest which requires that some one shall continue
TO exercise tho duties of public Office, pending lit
gation to its title. Upon the otherh and. the
active incumbents of office may be protected pend
ing contest to their title, from interference with
4 their functions
What are the facts presented by the petition and
adavits filed in this application 1t is clear that the
reator legally elected at this session President
of the Senate and that he has since continued
the presiding officer of the Senate and is the dc
facto presiding officer and, if am right in my view
of the law that the defendant not legally cleo ted
because legal election could be then held then the
reator is orly the de facto but he is the de jure
President of the Senate. 1t is admitted that the do
PENDANT declared by the Speaker of the House or
Representatives elected Lieutenant governor; that he
the House Of Representatives, and por.
| ton of the Senators. in what was claimed
to be joint assembly. and that he did this claiming
by virtue of his right Lieutenant to pre-
side the Senate and that he afterward notified
the Senate that he had duly qualified and in pos
session of the Office of Lieutenant govss4-eF. aud
ready to preside over the Senate. and protested
against being excluded from the exercise of that fnc
ton of his Office and that he proposed to preside
the joint convention to assemble on the 18TH day OF
January. 1887 for the purpose OF electng United
Safes Senator, if he do without violence or
breach of the peace and not otherwise.
The question is whether this is such ausurpation
or threated invasion OF the reators rights entities
him to temporary injunction. There IS provision
of the statutes that provides who shall
preside at joint convention; that is determined by
| parliamentary usage. according to which the presid
ing officer of the higher branch Of the Assembly pre-
Sides The Lieutenant governor, SUCH has nc
right authority to preside joint convention
When he pIesdes, il at all it must be because he is
the presiding officer of the Senate. And therefore
as relator unauestionably the de faeto presid
ing officer of the Senate the President thereof tn,
defendant could not discharge that function of the
Drnc: aT t,,tr
rights and duties Therefore he has right to inter
eere with the reator in the discharge of such duties
and, if the relator not de jure the presiding
officer of the Senate according to the authority cet
by counsel for defendant. he. the de acto officer
would be entitled TO protection in the discharge of hi
duties and think would be entitled to be protected
from any invasion of his rights such presiding of
cer; but this is certainly true if the relator is de iur
the presiding officer of the Senate But it is elaine,
by the defendant that while he intends to preside
the joint convention he intends to do without vic
lence breach Of the peace.
| think that il the defendant is intending to unlaw
fully exercise the right which belongs the plaintiff
and interfere with his duties presiding officer
and intends to intrude himself into that Office OF
function of the office and attempt to discharge par
OF the functions that belong his Office. which &c
cordng to my view of the he has right TO dis
charge. then he may properly be enjoined ever
though no breach of the peace is intended. At al
events he clearly has right to interfere with tn
de facto presiding officer as think.
In High on Injunctions. Sec 500, il is said s'Il
of doubt the actual legal right of the fran
chise in controversy, court of equts win generall
be determined in granting withholding the in
ton by considerations of the relative convenience an
Inconvenience to the parties in the cause. And
IN such case the inconvenience seems to be event
equity will leave the PARTIES they are n
til the right can be determined at law" The sam
rule would apply where both public and private inter
est invole. Under the circumstances of this cast
think the injunction prevent the defendant SO IN
he is proposing to interfere with the rights OF tn
reator President Of the Senate concerned shoul
be granted.
am content with granting the Injunction b,
cause the interests OF the public demand, shinl
that the Supreme Court should pass as soon as moss
BILE upon the questions which arise this applicable
And the only way in tho absence of an agreement G
the parties which inpracticable that TIL
case can 30 the Supreme Court
: by granting this Injunction. And If + al
wrong it can be righted in very few days before
great injury be done the defendant BY this rnfp,
Q and hope before the first joint convention. On ii